Tasse v. Hoveland et al., (1992) 132 A.R. 117 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 23, 1992
• Citations: (1992), 132 A.R. 117 (QBM)

Tasse v. Hoveland (1992), 132 A.R. 117 (QBM)

MLB headnote and full text

Steve Tasse (plaintiff) v. Dennis Hoveland, the Edmonton Police Department and the City of Edmonton (defendants)

(Action No. 8903-07898)

Indexed As: Tasse v. Hoveland et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

July 23, 1992.

Summary:

The plaintiff sued the defendant for breach of contract, alleging that he delivered a truck to the defendant for safekeeping for rent of $125 a month, that the vehicle was towed by police after the defendant parked it on the street and that when he went to get the truck it was missing. The plaintiff applied for leave to continue his action and to amend his pleadings to raise a tort action against Hoveland and to add two other parties and the chief of police as defendants.

A Master of the Alberta Court of Queen's Bench denied leave to amend the pleadings, but granted leave to continue with the action in contract.

Police - Topic 5002

Actions against police - General - Actions against chief of police for acts of police officers - The plaintiff sued the defendant for breach of contract, alleging that a truck he delivered to the defendant for safekeep­ing disappeared from the police storage compound after being towed - The plain­tiff applied for leave to add the chief of police as a defendant under s. 39 of the Police Act which provided that the chief of police was vicariously liable for torts committed by police officers - A Master of the Alberta Court of Queen's Bench denied the application, where the alleged tort was committed before s. 39 came into force and the section was not retrospective and where there was no vicarious liability at common law by a chief of police for torts committed by police officers - See paragraphs 36 to 64.

Practice - Topic 662

Parties - Adding or substituting parties - Adding or substituting defendants - Re­quirement that plaintiff have cause of action against party to be added - [See Police - Topic 5002 ].

Practice - Topic 673

Parties - Adding or substituting parties - Adding or substituting defendants - Cir­cumstances when denied - The plaintiff sued the defendant for breach of contract, alleging that a truck he delivered to the defendant for safekeeping, disappeared after it was towed by police - The plaintiff applied for leave to add two persons as defendants, alleging that they were involved in removing the truck from the police storage compound - One party was unknown and was named as John Doe - A Master of the Alberta Court of Queen's Bench denied the application, where there was no evidence showing facts to justify adding the parties - See paragraphs 23 to 35.

Practice - Topic 2110

Pleadings - Amendment of pleadings -Adding new cause of action - [See Prac­tice - Topic 2111 ].

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action which is statute barred - The plaintiff sued the defendant for breach of contract, alleg­ing that he delivered a truck to the de­fendant for safekeeping for a monthly rental fee, that the vehicle was towed by police after the defendant parked it on the street and that when he went to get the truck in November 1987 it was missing - The plaintiff applied for leave to amend his pleadings to raise a tort action against the defendant - A Master of the Alberta Court of Queen's Bench denied the appli­cation, where the limitation period had expired, there was inexcusable delay and the def­endant would be prejudiced - See para­graphs 3 to 20.

Statutes - Topic 2272

Interpretation - Presumptions and rules in aid - Presumption against retrospective operation - [See Police - Topic 5002 ].

Torts - Topic 2643

Vicarious liability - Particular persons - Chief of police - Liability for acts of police officers - [See Police - Topic 5002 ].

Cases Noticed:

Alberta Government Telephones v. Arrow Excavators and Trenchers (1972) Ltd. (1989), 99 A.R. 25 (C.A.), refd to. [para. 15].

Fisher v. Oldham Corp., [1930] 2 K.B. 364, refd to. [para. 45].

Mahood v. Hamilton-Wentworth (Region) Commissioners of Police (1976), 14 O.R.(2d) 708 (C.A.), refd to. [para. 46].

Enever v. R. (1906), 3 C.L.R. 969 (H.C.), refd to. [para. 46].

Attorney General for New South Wales v. Perpetual Trustee Co., [1955] A.C. 457 (P.C.), refd to. [para. 46].

McLeave v. Moncton (City) (1902), 32 S.C.R. 106, refd to. [para. 46].

Pon Yin v. Edmonton (City) (1915), 8 W.W.R. 809 (Alta. S.C.), refd to. [para. 46].

Kellie v. Calgary (City) (1951), 1 W.W.R.(N.S.) 691 (Alta. C.A.), refd to. [para. 46].

Tenove v. Patterson and Edmonton (City) (1978), 13 A.R. 374; 8 Alta. L.R.(2d) 391 (C.A.), refd to. [para. 46].

Caratozzolo v. Murdock, Ewatski and Edmonton (City) (1982), 47 A.R. 394 (Q.B.), refd to. [para. 46].

Hunter v. Eck, Brown, Poss, Doe and Edmonton (City) (1976), 1 A.R. 524; 1 Alta. L.R.(2d) 319 (T.D.), refd to. [para. 46].

Prue, Re (1984), 57 A.R. 140; 35 Alta. L.R.(2d) 169 (Q.B.), refd to. [para. 49].

Great Northern Insurance v. Young, [1917] 1 W.W.R. 886 (Alta. S.C.), refd to. [para. 51].

Gunn's Foods v. Rae, [1934] 2 W.W.R. 108 (Alta. C.A.), refd to. [para. 51].

Dubuc v. Tarrabain (1954), 13 W.W.R.(N.S.) 127 (Alta. Dist. Ct.), refd to. [para. 51].

Statutes Noticed:

Police Act, S.A. 1988, c. P-12.01, sect. 39(1) [para. 37].

Counsel:

Cook, Duke, Cox, for the plaintiff;

J.R. Black, for the defendant, Dennis Hoveland;

Ms. Palmer, for the City of Edmonton.

These applications were heard before Funduk, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on July 23, 1992.